Glossary of Legal Terms
Amicus Curiae Brief: a "friend of the court” brief filed by non-parties with an interest in the issues raised by the litigation.
As Applied Challenge: challenge on constitutional grounds alleging that a particular statute is unconstitutional as applied to the plaintiff.
Child Pornography: a category of unprotected speech encompassing portrayals of actual children engaged in actual sexual activity (as defined by statute), regardless of whether the speech in question would otherwise meet the Miller obscenity test. This category does not include "virtual” child pornography, whether generated by a computer or by using young-looking adults as actors.
Discovery: in litigation the process through which the parties request documents from their opponents and depose potential witnesses in preparation for trial or to request summary judgment.
Facial Challenge: challenge on constitutional grounds alleging that no set of circumstances exists under which the statute would be valid.
Harmful to Minors (in some states "Harmful to Juveniles”): a category of unprotected speech deemed obscene for minors. The test parallels the Miller obscenity test but the considerations are in the context of offensiveness and serious value for minors. Courts have held that a determination of whether material is "harmful to minors” must be made in the context of whether the material would be harmful to the oldest of minors, i.e., a seventeen year old.
Overbreadth Doctrine: allows a court to invalidate a law as a facial challenge on First Amendment grounds if a substantial number of its applications would be unconstitutional.
Obscenity: a category of speech not protected by the First Amendment meeting the definition set forth by the United States Supreme Court in Miller v. California: (1) whether the average person, applying ”contemporary community standards” would find the work, as a whole, appeals to the "prurient interest,” (2) whether the word depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Petition for Writ of Certiorari: a petition filed with the Supreme Court asking it to review the judgment of a lower court. The Court only grants certiorari in a limited number of cases each year.
Standing: legal right to bring an action in court. For example, a plaintiff challenging a criminal statute must have a "credible fear of prosecution.” A plaintiff challenging a book removal in a high school must have a connection to the school (i.e., student) at the time of the removal and through the conclusion of the case.
Strict Scrutiny: test applied to determine whether a restriction on speech is unconstitutional under the First Amendment. To justify a restriction on speech the government must show that: (1) it has a compelling interest in enforcing the restriction; (2) the restriction is narrowly tailored to achieve that compelling interest; and (3) there is no less restrictive alternative to achieving that interest.
Summary Judgment Motion: a request to the court to rule for the requesting party without the need for a trial on the grounds that there is no material fact in dispute for which a trial is needed and the matter can be resolved on the basis of law.